Professional Documents
Culture Documents
2d 1048
Richard Hathaway, Asst. U.S. Atty. (Benjamin L. Burgess, U.S. Atty., and Kurt
J. Shernuk, Asst. U.S. Atty., on brief), Topeka, Kan., for plaintiff-appellee.
Defendant was convicted after a jury trial of: (1) rape, [18 U.S.C. Secs. 1151,
1153, and 2031]; (2) burglary, [18 U.S.C. Secs. 1151 and 1153, and
Kan.Stat.Ann. Secs. 21-3716 and 21-4501]; (3) robbery, [18 U.S.C. Secs. 1151,
1153, and 2111]; (4) theft, [18 U.S.C. Secs. 1151, 1153, and 661]; and (5)
sodomy, [18 U.S.C. Secs. 1151, 7, and 13, and Kan.Stat.Ann. Secs. 21-3506, as
amended, and 21-4501]. All acts occurred on the Kickapoo Indian Reservation
in Kansas. At the date of his conviction, defendant was eighteen years old and
therefore eligible for sentencing under the Federal Youth Correction Act, 18
U.S.C. Secs. 5005-5026. The district court made an express finding of "no
benefit" and sentenced defendant under 18 U.S.C. Sec. 5010(c). On appeal,
defendant contends:
(3) the district court erred in admitting the government's exhibits; and
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(4) the district court erred in sentencing defendant under 18 U.S.C. Sec. 5010(c)
because the court did not state supporting reasons for its express finding of "no
benefit."I.
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V.M. immediately reported the attack. V.M. was initially examined by a family
physician. He described V.M. as emotionally traumatized. A pelvic
examination revealed blood in V.M.'s vaginal canal. The family physician
referred V.M. to a specialist in obstetrics and gynecology for further evaluation.
The specialist noted small hemorrhages on V.M.'s skin from mid to upper neck
in almost a straight line across her mid neck. A rectal examination revealed two
tears of the lining of V.M.'s rectum extending from the outside inward.
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Defendant was arrested not long after the attack, which occurred at 7:00 a.m.,
on August 28, 1983. Defendant admits he was drinking beer into the early
morning hours of August 28, 1983. Defendant is a Sac and Fox tribe enrollee
with 7/16th Indian blood. Defendant's car, inoperable on the day of the attack,
has a standard transmission. Defendant at first denied having seen V.M.'s car,
then later admitted knowing where her car could be found. V.M.'s car was
found in a soybean field approximately one-half mile from where defendant was
arrested.
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The dash of V.M.'s car had been torn apart and the car's eight-track tape/radio
and stereo speakers were piled up on the front seat. The radio knobs were
missing. Defendant admits trying to steal the eight-track tape/radio and
speakers. At his booking, defendant was in possession of radio knobs and ten
dollars and change. The large tennis shoes defendant was wearing at the time of
his arrest are similar in size and pattern to shoeprints found at V.M.'s house and
near her car. We hold the evidence is sufficient to sustain defendant's
conviction.
II.
The Allen instruction
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Defendant next contends the district court erred in giving its Allen instruction.
Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). We
have approved the Allen instruction as permissible in the Tenth Circuit, but
urge caution in its use. United States v. Brunetti, 615 F.2d 899 (10th Cir.1980);
United States v. Dyba, 554 F.2d 417 (10th Cir.), cert. den. 434 U.S. 830, 98
S.Ct. 111, 54 L.Ed.2d 89 (1977). If the Allen instruction is given at all, it
should be incorporated into the body of the court's original instructions to the
jury. It should not be given during the course of deliberations. Munroe v.
United States, 424 F.2d 243 (10th Cir.1970); United States v. Wynn, 415 F.2d
135 (10th Cir.1969), cert. den. 397 U.S. 994, 90 S.Ct. 1133, 25 L.Ed.2d 402
(1970); United States v. Winn, 411 F.2d 415 (10th Cir.) cert. den. 396 U.S.
919, 90 S.Ct. 245, 24 L.Ed.2d 198 (1969). Caution should be used to ensure the
Allen instruction is not coercive.
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Here, the Allen instruction was given in the court's original instructions to the
jury. The wording of the district court's instruction was not "coercive so as to
influence the jury to reach a particular verdict." Dyba, 554 F.2d at p. 421. We
hold the district court did not err in giving its Allen instruction.
III.
Admission of evidence
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Defendant urges the district court erred in admitting the government's exhibits
into evidence.
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In United States v. Latimer, 780 F.2d 868, 870 (10th Cir.1985), we reviewed
the scope of the prosecutor's duty to turn over evidence to the defendant:
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Under
Brady [v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ], the
prosecution is required to turn over to the defendant evidence favorable or
exculpatory to the defendant's case when such evidence is material as to guilt or
punishment. In United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342
(1976), the Court articulated three situations where the Brady doctrine applies. First,
where the prosecution knew or should have known that its case contained perjured
testimony a conviction will be set aside "if there is any reasonable likelihood that the
false testimony could have affected the judgment of the jury." Agurs at 103, 96 S.Ct.
at 2397. Second, where the prosecution fails to respond to a specific request for
information, a new trial should be granted if the withheld evidence might have
affected the outcome of the trial. Agurs at 104, 96 S.Ct. at 2397. Finally, where the
defendant generally requests exculpating evidence and such evidence is withheld,
reversal is required only if the omitted evidence "creates a reasonable doubt that did
not otherwise exist." Agurs at 112, 96 S.Ct. at 2401.
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For his fourth and final proposition, defendant urges the district court erred in
sentencing defendant under Sec. 5010(c) of the Federal Youth Corrections Act,
18 U.S.C. Secs. 5005-5026, because the court did not state supporting reasons
for its express finding of "no benefit." [Section 5010 has now been repealed,
Pub.L. 98-473, Title II, Sec. 218(a)(8), Oct. 12, 1984, 98 Stat. 2027.]
Defendant's argument is without merit. In Dorszynski v. United States, 418
U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974), appeal after remand, 524 F.2d
190 (7th Cir.1975), cert. den. 424 U.S. 977, 96 S.Ct. 1483, 47 L.Ed.2d 747
(1976), the Supreme Court held that in sentencing under Sec. 5010(d), an
express finding of no benefit must be made on the record, but the Act does not
require that it be accompanied by supporting reasons. Dorszynski, 418 U.S. at
pp. 425-426, 94 S.Ct. at 3044. We hold that the reasoning of Dorszynski under
Sec. 5010(d), that the district court need only make an express finding of no
benefit and need not give supporting reasons, is equally applicable to Sec.
5010(c).
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AFFIRMED.
The Honorable Lee R. West, United States District Judge for the Western
District of Oklahoma, sitting by designation